Foreign Intelligence Surveillance Oversight and Resource Enhancement Act of 2006

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, let me thank Senators Hutchison and Feinstein, the managers of this bill, for the opportunity to offer and discuss my amendment to provide emergency agricultural disaster assistance for our farmers and ranchers. Normally, most of my colleagues know I would not offer this amendment on an unrelated measure. Our hand is forced. We are told it is highly unlikely there will be an Agriculture appropriations bill considered separately. We have no alternative but to offer this measure to this legislation.

This amendment will determine whether thousands of farm families will be able to continue next year. We have had 2 years of unusual natural disasters that have affected agriculture across this country. These people need to know whether they can continue in the business of farming and ranching. Their bankers need to know. This legislation is critical to that determination.

For over a year, I, along with many of my Senate colleagues--let me indicate that it is already nearly 20 of my colleagues--have come on a bipartisan basis to cosponsor this bill, including Senator Coleman of Minnesota; Senator Ben Nelson of Nebraska; my own colleague, Senator Dorgan of North Dakota; Senator Salazar of Colorado; Senator Hagel of Nebraska; Senator Johnson of South Dakota; Senator Thune of South Dakota; Senator Enzi of Wyoming; Senator Baucus of Montana; Senator Reid of Nevada; Senator Clinton; Senator Obama; Senator Durbin; Senator Leahy; Senator Harkin; Senator Cantwell; Senator Burns of Montana; Senator Schumer; and Senator Roberts of Kansas. Repeatedly, we have come to the Senate to try to get disaster assistance considered.

Last spring, as part of the hurricane supplemental, the Senate approved an agricultural disaster package for the 2005 crop-year. That measure was dropped in conference due to opposition from the administration and the House leadership. I have taken out the provisions that drew the opposition of the administration. Those direct payments that were an offset to the dramatic runup in energy prices are not in this bill.

The legislation I am offering today is nearly identical to the bipartisan relief provision I introduced on September 20, 2006. My amendment is bipartisan and has 19 cosponsors.

The need for this amendment is compelling. In North Dakota last year, as this picture shows, we faced extraordinary flooding. Over a million acres were prevented from being planted. Hundreds of thousands of acres that were planted were drowned out because of excessive rainfall. There was no disaster assistance for those farmers.

This year, in the irony of ironies, we now have experienced an extraordinary drought. This is a picture from my home county, Burleigh County, where the capital of North Dakota is located. This is a corn crop, but nothing was produced. It is only one of thousands of fields that were not worth harvesting.

This drought has been determined by the USDA meteorologist to be the third worst drought in our Nation's history. Only the Dust Bowl of the 1930s and the prolonged drought of the 1950s compared to what many parts of the country have been facing.

This chart shows the U.S. Drought Monitor. It shows how severe the drought was all across the Midwest and Southeast. Its darkest colors represent exceptional drought. North Dakota and South Dakota were the epicenter of this drought in late July. It has been totally devastating to my part of the country. If assistance is not granted, literally thousands of farm families will be forced off the land. That is a fact.

The independent bankers of my State said to a White House representative who was in my office that if assistance does not come, 5 to 10 percent of their customers in North Dakota will be forced out of business. Mr. President, 34 farm organizations have told Congress that assistance is needed and it is needed now. In addition, we have a letter from the State commissioners of agriculture from all across the country saying that emergency agricultural disaster assistance is a high priority requiring action by Congress this year. It could not be more clear. Assistance is needed. It is needed now.

As I noted last May, the Senate approved disaster assistance, only to be thwarted by the threat of a veto. In June, the Senate Committee on Appropriations once again approved emergency disaster assistance as part of the Agriculture appropriations bill for 2007. Thus far, that bill has failed to come to the Senate.

On numerous occasions, including the last day we were in session before we recessed for the elections, I tried to get the Senate to adopt disaster relief legislation. Again, the effort was stymied.

Today, we have another chance to do what is necessary and what is right. My amendment incorporates many of the provisions already approved by the Senate, but I have made a few modifications to address the objections raised by the administration. The economic assistance provisions help producers offset rising energy costs, and the direct grants to States to assist specialty crop and livestock sectors have been removed. Those provisions, at the insistence of the White House, have been removed.

Also, the administration has stated that we need to wait until harvest is concluded. The harvest is now over for 2006; the losses are real and significant throughout many parts of the country.

The crop and livestock production loss provisions contained in the original legislation were retained and will apply for both the 2005 and 2006 production years. Crop producers will still need to demonstrate a 35-percent loss before they get any assistance. The Livestock Compensation Program will only be made to producers whose operations are in counties designated as disaster areas by the Secretary and who can demonstrate they have suffered a material loss. The legislation also contains additional funding for conservation operations to help restore and rehabilitate drought and livestock losses on grazing land. Scientists have told us this is imperative. Because of the modifications, the cost of providing disaster assistance for 2005 and 2006 has been reduced from $6.7 billion to $4.9 billion--a reduction of nearly $2 billion.

Farmers and ranchers need assistance for the 2005 and 2006 fall disaster losses, and they need it now. If these emergencies are not addressed, literally tens of thousands of farm families and Main Street businesses will suffer, many irreparably. It is time to act and allow the Senate to vote on this amendment.

Mr. President, I conclude by saying I regret having to offer this amendment to this legislation. I have no choice. We have no choice. The over 20 Members of the Senate who have come forward to sponsor this legislation in various variations of the legislation have no choice. If we do not act now, tens of thousands of farm families will not be able to continue. The stakes are high. I urge my colleagues to give favorable consideration to this legislation.

I yield the floor.

Mr. President, I would reserve the right to object. This presents us with somewhat of an awkward situation because I have withheld offering my amendment. The only amendment pending is the amendment of the Senator from Hawaii, Mr. Akaka. But we have been on my amendment. We withheld actually offering it. I would ask my colleague if she would at least allow us to call up my amendment--Senator Akaka was waiting to speak on the amendment--and then be able to lay that amendment aside?

Mr. President, might I now call up my amendment?

I ask unanimous consent that further reading of the amendment be dispensed with.

I thank the Chair.

Reserving the right to object, I would like to be included in that order so that I may be able to respond to whatever the Senator from New Hampshire might say.

Mr. President, I have listened to my colleague with great interest. He is the chairman of the Budget Committee, someone with whom I work closely and have respect for and affection for. But he has talked about this violating the budget. There is no budget. No budget has been passed. My colleagues have been in control, and we have not passed a budget. Let's be square about this. There is no budget.

No. 2, this is not the new Congress; this is a continuation of the old Congress. The old Congress didn't get the job done. Let's be straight about that.

No. 3, the Senator said this has been defeated in the past in the Senate. Wrong. This has passed the Senate. This passed the Senate with 77 votes. It wasn't defeated; it was passed with 77 votes on a bipartisan basis. The package that passed was more generous than this package because the White House raised objection to that package. The White House said it was too much money. The White House said they did not want the direct payments as an offset to the skyrocketing energy prices, so we took those provisions out and saved $1.8 billion. That is the package that is before this body. It is the package that has passed. In fact, in the appropriations process, it passed several

times. In fact, it is waiting in the Agriculture appropriations bill right now.

Unfortunately, that bill, we are told, is not going to be considered. So the only opportunity we have to address the emergency disaster concerns of people all across this country is with this amendment, make no mistake. This amendment is fully bipartisan. We now have 20 cosponsors.

This is an emergency. So pursuant to section 402 of H. Con. Res. 95, the concurrent resolution on the budget for fiscal year 2006, I move to waive section 402 of that concurrent resolution for purposes of the pending amendment, and I ask for the yeas and nays.

Mr. President, this doesn't bust the budget. No, no, no. We have always handled natural disasters in this way, with an emergency designation. That is the rule, that is the precedent, that is what we have done before, and that is what we should do now. This is not breaking the budget. That is just not the case. The Senator knows it is not the case.

This is a circumstance, as we have dealt with every natural disaster in the past: We make a determination whether an emergency exists. Clearly it does. We have been struck by the third worst drought in our Nation's history. This provision passed this body with 77 votes.

The people who are out there expect the Congress, expect the Senate to respond to the needs of the American people. We have a need for security. We have a need, an absolute need, for a return to fiscal responsibility. We also have a need to deal with natural disasters when they strike the American family. This is a set of disasters almost unprecedented in our history. The people who have been hit by them deserve a response. That is what this amendment seeks to do.

Mr. President, how much time do I have remaining?

Does the Senator from New Hampshire want to continue?

Mr. President, we recognize the Senator would be within his rights to make a motion under rule XVI. I say to the Senator, we hope he will not do that. We hope we will have a chance for a vote on the Senate floor on this question. I say to my colleagues, if we don't get a vote now, we are not going to stop until we do get a vote.

I say to my colleague, it is certainly reasonable to bring a challenge under the Budget Act and to require a supermajority vote, but I hope very much that the Senator will not use rule XVI on a matter of this importance to so many people across the country. I implore the Senator not to invoke rule XVI.

Mr. President, I have been advised that the other side may intend to raise rule XVI against my amendment. I would ask them before they make that judgment, it would be entirely in order for me to offer my amendment to the Vietnam PNTR legislation. And if we are going to get treated this way, then I reserve my right to offer the amendment on the Vietnam PNTR. That will assure that the Vietnam PNTR will not get done during this week. So if others are going to treat us that way, they should be prepared for me to play hardball, too.

I have been very patient. I have operated under the regular rules repeatedly. But if others are going to give us short shrift, if they are going to tell the farmers and the ranchers who have suffered disaster that they don't even get a vote, then I am prepared to play hardball, too.

I thank the Chair.

Mr. President, I thank the Chair. I thank my colleagues.

Let me be very clear. Senators have a right to invoke rule XVI. But let's be clear. This is how emergency disasters have been dealt with year after year after year in this body. What I am seeking to do is to get a vote. The farmers and ranchers of this country deserve a vote. Now, they can deny the vote, at least temporarily, but if they think that is the end of the story, they are wrong. We are going to be back. And, look: If my colleagues are going to invoke rule XVI on this measure, when the underlying legislation has passed this body with 77 votes, and by that device prevent a vote, then things are going to get very tough around here. I know the rules of the Senate. If Members think they can ramrod things and deny farmers and ranchers in this country a vote on desperately needed disaster assistance, then this Senate is going to slow way down. My colleagues can use their rights and I will use mine. Let there be no doubt about what the result will be. This place is going to have a hard time functioning if there is not comity, if there is not fairness, and if people are denied a vote repeatedly. That is what is occurring.

The precedent is clear in this Senate. Virtually every disaster package has been legislation on an appropriations bill. Rule XVI was not invoked because it was recognized that is one of the few ways to achieve the result.

The Senator has the right to invoke rule XVI. This Senator has a right to object to unanimous consent agreements, to put the legislation on Vietnam PNTR, and to move to seek a vote. It is only fair the farmers and ranchers of this country, who have been devastated, get a vote. Let the Members vote. That is what the people were saying in this election. They want a process that is fair and that gets results for the American people.

I object.

Mr. President, unfortunately, the Republican leader just left the floor. We were about to be in a position to resolve this matter. I ask the leader's staff to ask the leader to return to the floor so we can resolve this.

Maybe for the interest of my colleagues, I will try to reflect on where we are. I had offered an amendment for disaster aid for farmers and ranchers. The chairman of the Budget Committee, within his rights, raised a budget point of order against my amendment. It was then suggested that rule XVI would be raised as well. We have had, over the last several hours, a series of discussions to find a way to resolve this matter. At this hour, it appears the best way to resolve it is to have a commitment that we would go to the Agriculture Appropriations bill tomorrow and try to do that in a tight timeframe of limited amendments, and that I would have a chance to offer the amendment at that time and other Senators' rights would be reserved, and that I would withdraw my amendment from this bill with the understanding that we would go to the Agriculture Appropriations bill tomorrow. That is what we had tentatively agreed to. I think we just have to have the leader indicate publicly that that is his understanding as well. Then we can break the gridlock here and proceed to finish Military Construction.

While we are waiting, I might indicate how much I appreciate the patience of the chairman and the ranking member of the Military Construction bill and their very constructive efforts to try to find a way out of this. I for one deeply appreciate it. I also very much appreciate the work of both the majority leader, Senator Frist, who has made his best efforts to try to resolve this matter, and our own leader, Senator Reid, for his assistance as well. Certainly a special thanks goes to Senator Bennett and ranking member Senator Kohl for their constructive efforts and their agreement to go to their bill tomorrow. I also thank Senator Dorgan, my colleague, for his efforts to try to move this matter along.

With that, I yield the floor and hope that we have a chance to hear from the majority leader, so we can start the process to unwind this and reach a conclusion.

Mr. President, I notice the majority leader has returned to the floor. I tried to recount for our colleagues the status of our discussion, and the understanding that we had reached, that I would withdraw my amendment from this bill with the understanding that we would go to the Agriculture Appropriations bill tomorrow and have a chance to offer it there. All Senators' rights would be reserved. That is the status of it. I just ask if that is the majority leader's understanding. If it is, I will then be willing to withdraw my amendment from the Military Construction bill and we can conclude that.

Mr. President, I thank the majority leader for being very constructive. I thank my friend from New Mexico for his zealous guarding of the rights of his chairmanship of his committee. I certainly recognize that position.

I think we have made significant progress. We can move to the Agriculture appropriations bill tomorrow. That is the place this amendment ought to be. I only offered it on this bill because we had no prospect of going to the Agriculture appropriations bill any time this year without this agreement.

I thank the majority leader. I thank very much the chairman of the Agriculture Appropriations Subcommittee, the very able Senator from Utah. I thank the Senator from Wisconsin, Mr. Kohl. I very much thank the chairman of this committee, the Senator from Texas, and the Senator from California, the ranking member, who have been so constructive today. And again, special thanks to my colleague Senator Dorgan for his assistance throughout.

I withdraw my amendment.

Mr. President, I thank my colleague Senator Conrad for his leadership, my colleague Senator Johnson, and so many others, Republicans and Democrats, who have worked together to try to construct a piece of legislation that would provide some disaster help for farmers, and then to try to get it through the Congress and get it to the President's desk for his signature.

This has been a long, tortuous trail. Twice before the Senate has passed disaster relief for family farmers--twice. Both times it went to a conference with the House. I was a conferee on both occasions. I was involved with my colleagues in attaching it to the appropriations bill as it went to a conference. We got to conference. Both times the President threatened to veto the legislation, to block it. And he got the conferees on the House side to require that it be taken out of the conference report. Therefore, this is the third attempt on the floor of the Senate to do this piece of legislation. And it is very important.

Let me talk for a moment about this issue of farming because we all come to work and we wear neckties and suits and take showers at the start of the day. Farmers take showers at the end of the day because their work is hard. They feed cattle. They plow the ground. They grease a tractor. They run a combine. They put up hay. They do all the things that represent very hard work out in the land, and they are economic all-stars.

The ability of the American family farmer to feed more and more people is pretty extraordinary. But they work very hard and they produce a product. If things cooperate, if they get decent weather, enough rain, the disasters don't come, the insects aren't there, then they produce a crop. They produce a kernel of corn, perhaps some wheat, a kernel of barley, some rice. What happens is the wheat gets puffed by a company someplace, after it gets hauled by railroad, and then it gets put in a box and sold as puffed wheat. The farmer gets almost nothing. The railroads take too much, and the box of puffed wheat costs an unbelievable amount of money.

The same is true with crisping rice. It goes into a box called Rice Krispies. The same is true with corn. They flake the corn, put it in a box, and call it corn flakes. The railroads get a lot of money for hauling that corn to market, the people who sell the corn flakes get a lot of profit, and the farmer gets almost nothing. That is what farming has always been about. But they only get the crop in the first place if they do not get wiped out by a natural disaster--whether disease, insects, or so on.

Now, what has happened in the last couple of years, particularly in our part of the country, the Dakotas were called the epicenter of a drought, the epicenter of a drought. So those farmers, who in the spring went out and planted their crops, discovered they did not have any crop growth at all. Nothing came up in those fields.

It is pretty unbelievable to drive by a field that is supposed to be a field of grain and see it look like a moonscape. I drove to Zeeland, ND, one day, a very small town just north of the South Dakota border. And as I drove into that town, to my left was a patch of ground that looked like moonscape--no vegetation at all. There had been no rain there. One hundred ranchers gathered in a small community hall in Zeeland, ND, to talk about what this meant to them. One after another, they stood up to talk about what it means when you don't get rain.

One fellow from another part of our country who had moved back to North Dakota said: I had never, ever understood why they measured rain in hundredths. How much rain did you get? Twenty hundredths, twenty- four hundredths. I never understood before why they measured rain in hundredths until I came to North Dakota, a State with 15 to 17 inches of annual rainfall in an entire year. And then what happens? It stops raining, and you have a drought and nothing grows; or it rains too much, and you get one-third of the annual rainfall in one day. We have had both happen. One happened the year before, in 2005; one happened in 2006.

Some will say: Well, you just come and talk about farming all the time. Family farmers this, family farmers that. There is a writer in North Dakota, a farmer, a rancher, down near Almont, I believe. His name is Rodney Nelson. He asks in some of his prose some very important questions: What is it worth to our country? What is it worth for a young person to know how to plow a field, to grease a tractor? What is it worth for a young person to know how to weld a seam, how to combine a field of grain? What is it worth to have a young person know how to build a lean-to, how to take care of cattle, how to care for livestock? What is it worth to have young people know how to work in the bitter cold and do chores in the morning in the bitter cold, or to be out in the fields when it is unbelievably hot, combining that field of grain? What is that worth? There is only one university in America where those studies are taught, and that is America's family farms.

What is it worth to us? Do we want to save those farmers when they run

through some tough times, when they reach a tough patch? That is what has happened here.

Always before our country has said: Do you know what. When you are out there alone, living under a yard light, and you and your family are trying to make a living and you get hit with a natural disaster, this country is going to help. This country wants to reach out a hand and say: You are not alone. We want to help you.

Well, in the new farm bills, they took out the disaster title. There ought to be one. I intend to offer legislation to put a disaster title back in the farm bills so we are not begging at the end of every session to try to provide some help to farmers who otherwise are going to go broke.

Let me describe, as my colleague has done, this picture of a soybean field in North Dakota. There are not any soybeans there. That is a field that is dead, with barely any green at all. Normally, these soybeans would be lush, filling that piece of ground, and would be a foot tall. But, as you can see, these plants are worthless. There is not much alive in that photograph.

I have talked to farmers who sold off their entire herds. I talked to a young farmer who built a herd of cattle for 3 years. It was his life's goal to take over from his parents. He built his herd for 3 years and was barely making it, and then this drought hit and he had nothing to feed his cattle. If you don't have anything to feed your cattle, those cows are going to market. His cows are gone. He is out of business.

Shown in this picture is a man from my State who was a rancher. His name is Frank Barnick. He is shown walking on a creekbed. It does not look like that. It looks like, again, a moonscape. That is a creekbed that would hold water for his cattle, but it is dry. Frank said this is the worst drought he has ever seen.

These people, Frank and his neighbors and friends, are not asking a lot from this country. They are asking if this country cares whether family farmers are able to live on the land and continue farming. They hope that the answer is yes and that this country understands farmers contribute something very important. Family farmers contribute something very important to this country. A fellow who I thought was a wonderful author, used to write in a book about the nurturing of family values in America. He always described that family values in America came from family farms, the seedbed of family values, and they rolled to small towns and big cities, nurturing the value system and culture along the way.

We have attempted time and time again to get some disaster aid for people who need help. We asked the President, in the middle of the drought this year, to come out and do a drought tour. He was not able to do that. I went back and recalled that President Franklin Delano Roosevelt came out for a drought tour. We don't have a lot of Presidents stop through North Dakota. When they do, we are enormously honored to have them join us and be a part of North Dakota.

I wanted to read you a couple of things that President Roosevelt said. He stopped in Huron, SD, exactly 70 years ago. Then he stopped in North Dakota--both on a drought tour, both on a train--and spoke to people. Here is what he said to our neighbors to the south in Huron, SD, on a drought inspection trip. He said:

No city in an agricultural country can exist unless the

farms are prosperous.

I understand our economy has grown in ways that make this less than an agricultural country, but it certainly has not been the case with respect to agricultural States, where a predominant part of our economic base is still agriculture and family farming.

Here is what else the President said in Huron, SD, 70 years ago, understanding that family farmers were having great trouble during that drought:

I have come out here to find you with your chins up,

looking toward the future with confidence and courage. I am

grateful to you for the attitude you are taking.

That is the only way you could ever farm. There isn't anybody who would decide to be a farmer if they didn't look forward to the future with hope. They plant a seed and hope. They hope what they planted will produce a crop. It is the only way farmers can exist.

When Franklin Delano Roosevelt went to North Dakota 70 years ago on a drought tour, here is what he said:

But, when you come to this water problem through here, you

are up against two things. In the first place, you are up

against the forces of nature and, secondly, you are up

against the fact that man, in his present stage of

development, cannot definitely control those forces.

He continued:

Today, out here, I do not ask you to have courage and

faith. You have it. You have demonstrated that through a good

many years. I am asking, however, that you keep up that

courage and, especially, keep up the faith.

If it is possible for Government to improve conditions in

this State, Government will do it.

We hope that Nature is going to open the Heavens. When I

came out on the platform this morning and saw a rather dark

cloud, I said to myself, ``Maybe it is going to rain.'' Well,

it didn't. All I can say is, I hope to goodness it is going

to rain, good and plenty.

My friends, I want to tell you that I am glad I came here.

I want to tell you I am not going to let up until I can give

my best service to solving the problems of North Dakota.

Again, Franklin Delano Roosevelt, 70 years ago to family farmers: If it is possible for Government to improve conditions, we will do that. He said to the farmers: You are not alone. We want to help.

Let's say that again today, let the Congress say that to our farmers: You matter. You make a difference to this country's future. Your contribution to our culture and our economy is important. This Congress has not forgotten that. We will remember it today by investing in the future and saying to family farmers: We want you to be able to continue to farm. We don't want you wandering, as you go into spring planting, whether you are going to have the ability to remain on the farm with your family, producing food for a hungry world.

We want to pass a disaster aid package, one that puts this Congress in the same position that Franklin Delano Roosevelt was in 70 years ago, saying, if it is within the capability of this Government to help, we intend to help.

Again, let me compliment my colleague, Senator Conrad. I am pleased to work with him, as I have for many decades. This is an important amendment to offer now. While this is not the optimum place to offer this amendment, as this appropriations bill deals with different appropriations, we have not had the opportunity to do anything but this because we have not been given the opportunity to move this legislation separately. We offer it hoping for good will and for the support of others.

This is not partisan. It is bipartisan. Republicans and Democrats from farm country understand the importance and the value of doing this kind of legislation that says to family farmers: You matter to this country.

I yield the floor.

Mr. President, I have sought recognition to introduce legislation which I have captioned as the ``Foreign Intelligence Surveillance Oversight and Resource Enactment Act of 2006.'' This is a modification of legislation which had been introduced by the Senator from California, Mrs. Feinstein, and myself and passed out of the Judiciary Committee.

If it is in accordance with the rules, I ask that this bill be held at the desk.

The purpose of this legislation is to provide for oversight on the administration's electronic surveillance program which has been in effect for many years and which was publicly disclosed in mid-December last year. We now are at a state where the provisions of earlier legislation which I introduced, which would call for judicial review by the Foreign Intelligence Surveillance Court, are no longer necessary. Events have overtaken the situation, with litigation having been started in a number of district courts, and a decision has come out of the U.S. district court in Detroit. The issue is now on appeal to the Sixth Circuit, and there is no longer any need to provide for a referral to the Foreign Intelligence Surveillance Court because the matter is now in litigation and will be carried through on the appellate process.

The legislation which I am introducing tracks the Feinstein-Specter bill in that it provides additional resources to the administration. It expands the time when the administration can get approval for an electronic surveillance that has already been accomplished. With these additional resources, I am advised that the NSA will be in a position to have individual warrants for all calls which originate in the United States and go overseas. The bill does not touch the calls which originate overseas and come through checkpoints or transmission in the United States and go back overseas, where both the point of origin and the point of conclusion is overseas. And, we do not deal with calls which originate overseas and come into the United States.

The President has contended that notwithstanding the provisions of the Foreign Intelligence Surveillance Act that it is the exclusive way to get a wiretap warrant, he has article II power. And, there will be a test of that in the court system, which is now underway. That test will involve what the courts have said is the balancing test: the invasion of privacy versus the value for law enforcement and for national security. So that as to calls to repeat--when they originate overseas and come into the United States, that will be the issue which will remain to be tested.

This proposal does not deal with the existing language that the Foreign Intelligence Surveillance Act is the exclusive remedy, nor does it deal with any assertion about the article II power of the President.

It has been my view, expressed on the floor on a number of occasions, that the article II power is what it is, congressional power is what it is, and if there is genuine article II power, then it supersedes an act of Congress because the Constitution trumps an act of Congress. This legislation does not deal with those issues which had created what I thought was a needless controversy.

The bill further provides that there will be review by the Supreme Court of the United States. I think there doubtless would be review by the Supreme Court as a matter of course, but in order not to take any chance on that, Congress has the authority to mandate review with the Supreme Court, and this bill does that.

In addition, the legislation provides for expedited review so that there will be a judicial determination as to the constitutionality of what the President has done with respect to the calls originating overseas and ending in the United States. I think this bill is a significant advance in protecting civil liberties by having individualized warrants on calls which originate in the United States and which go overseas.

We have had this electronic surveillance in existence for a long time. The effort which I have made has been to have it subjected to judicial review, and it is my hope that this stripped-down legislation, which does enhance civil liberties by providing for individual warrants on calls originating in the United States and expedited review in the Federal courts and expedited review by the Supreme Court, would be acceptable.

We have time yet in this session this year to legislate on this important subject.

I yield.

Mr. President, the exclusive authority of FISA remains. This bill does not touch that. FISA is now the law of the land, and FISA says that it is the exclusive remedy for wiretapping. This legislation which I am introducing does not alter that, so it remains as provided in FISA that the Foreign Intelligence Surveillance Act is the exclusive remedy for wiretapping.

It does not deal with program authority at all. That was in the original legislation that I introduced as a way of getting the Foreign Intelligence Surveillance Court to review the program. But this does not deal with that, and it does not give the President any enhanced authority at all to conduct warrantless wiretaps. The bill doesn't deal with that.

Whatever authority the President has under article II, he has. What this bill does is submit for expedited review by the Supreme Court a determination as to whether the President has article II power to have a warrantless wiretap with a call that originates overseas and ends in the United States.

To repeat, the bill I am introducing does not touch that point. The bill I am introducing leaves the status quo on that point, and that is where some contend that it is illegal to have a wiretap where the call originates outside the United States and comes inside. The contention is made that it's governed by the Foreign Intelligence Surveillance Act and is, therefore, illegal. The President has a different argument. He is asserting article II power as Commander in Chief, and he says that his article II power, constitutional power, supersedes or trumps a statute. Whether he is right or wrong depends upon a judicial interpretation. Only the court can weigh, as the existing law is in this area, whether the importance of national security outweighs the invasion of privacy, and that determination is reserved for the Federal courts.

We are now having that determination in the Detroit case, ACLU v. NSA, where the district judge says it is unconstitutional and the Sixth Circuit now has taken the case. They have issued a stay, in effect, but they will take up the case on the merits.

Once the litigation is this far advanced, we are not now in the situation we were in last December when the Judiciary Committee, as the Senator from California knows, had four hearings and I had a bill to submit to the Foreign Intelligence Surveillance Court. That is bypassed now. Events have overtaken it.

This will provide for judicial review. It is my thought--and the Senator from California and I have talked about this again and again and have worked on her bill which I supported, voted out of committee 10 to 8 with 2 Republicans and 8 Democrats--this will expedite a determination as to whether all those calls originating overseas and coming in are or are not constitutionally tapped. And, it will help out with what the Senator from California has been the leader on--and that is to have individualized warrants for calls originating in the United States. That is a big advance on civil liberties if those calls are not tapped without a warrant.

Mr. President, it would be my hope that we could act on it this session. I say that, subject to review by the Senator from California and by other Members and by the House of Representatives. The Senator from California and I and others have thought about this issue long and hard. This bill is a real effort to try to accommodate all of the concerns the Senator from California has raised. That is to maintain the status of the Foreign Intelligence Surveillance Act as the exclusive way to wiretap. That stands.

There is no statement about the authority of the President under article II, which had been objected to before. As I say, whatever the constitutional authority is, it is, regardless of what the bill says, but this bill says nothing about that. It says nothing.

The Senator from California and I have wanted to have individualized warrants wherever we could get them, and now the Senator from California took the lead on this. She has had access to this program, where I have not, because she is on the Intelligence Committee. It is anomalous that the chairman of the Judiciary Committee would not know the program, but I respect the division which gives that intelligence to the oversight committee. But she and I both wanted to have individualized warrants everywhere if we could get them. And, now we know we can get them on calls originating in the United States if we add the resources that were in the legislation crafted initially by the Senator from California, which I joined, which passed out of committee and onto the floor. And it does not deal with the ones overseas into the United States. Whatever authority the President has on that, he is going to have to assert in Federal court and satisfy ultimately the Supreme Court that he has that article II power. My view is the sooner we have this determination, the better off we are.

Mr. President, I am glad to respond, and I thank the Senator from California for the question. It would achieve individualized review of warrants on calls originating in the United States, and there are a lot of them. How many there are, I don't know, but the NSA officials have told us that if we give them the additional resources, which was suggested originally by the Senator from California and which I concur in on the Feinstein-Specter bill, that they could have individualized warrants. And, I think that would be a big step forward on civil rights.

Mr. President, my bill does not exempt them. My bill just doesn't deal with them. Some say that FISA controls them and, therefore, they are illegal. The President says: No, he has article II power. And the only way that controversy can be resolved is in a Federal court, which will weigh them. And the Federal court in Detroit weighed them and said it was unconstitutional. And the Sixth Circuit has said they will review it. In the meantime, the program stands. But as the program stands, all of these warrantless wiretaps are going on and on and on. And we go one step further. We make sure the Supreme Court will take the case. We also have power in the Congress to expedite the review, set a timetable to get it done faster.

I thank the Senator from California for the colloquy which has further explained the bill.

Mr. President, I rise today in support of Senator Conrad's agriculture disaster assistance amendment and am pleased to be a cosponsor of this important legislative package. The package would provide comprehensive, critical relief dollars for agriculture disaster. It would provide assistance for a drought that has plagued our Nation's family farms, including those in my home State of South Dakota.

Producers in South Dakota have suffered from drought conditions that have rivaled the Dust Bowl of the 1930s. These chronic conditions have already ruined the wheat and corn crop for many producers in the State and resulted in thousands of cattle being sold off prematurely in auction barns. Those who have already sold the factory are left with only a mortgage to pay and no relief in sight.

Senator JOHN THUNE and I jointly traveled across South Dakota this summer to some of the areas hit hardest by this drought. We consistently heard about the astronomically high price for hay and fuel costs for transportation, if a producer could even find forage to purchase. We saw the effects of the drought on corn and soybeans, many of which barely got out of the ground and were stunted by desert-like conditions. Some producers saw yields that measured out to the tenth of the bushel, after being socked with severe fuel and fertilizer costs.

At a stop at the Ft. Pierre Livestock Sale Barn, we met with ranchers who finally had to sell out because of extreme conditions. The Herreid Livestock Sale Barn saw an estimated 2,500 to 3,500 head per week over the summer instead of the usual 200 to 300 cattle per week for that time of year.

I invited USDA Secretary Mike Johanns to travel to South Dakota and see this extensive damage firsthand. The Secretary of Agriculture came to my home State, but, unfortunately, rolled out a grossly inadequate agriculture disaster assistance program. This empty shell game is a glaring example of the ``too little, too late'' approach that this administration has too often employed with agriculture disaster assistance.

The Agriculture Department released only $2 million in Grasslands Reserve Program money and less than $7 million in Emergency Conservation Program funds to South Dakota over the summer. These dollars barely made a dent in the backlog of producers who have applied for these programs, leaving many out in the cold.

While in my home State, the Secretary announced the release of section 32 funds for distribution in our agriculture communities, amounting to $50 million in block grants to drought-impacted States. Although South Dakota has been subject to chronic extreme and exceptional drought conditions, the State received only $4.3 million. It was announced that Texas, however, would be given $16.1 million in assistance.

The administration's disaster relief package provides just a fraction of the dollars that the 2005 disaster relief measure, that my colleagues and I successfully attached to the most recent agriculture appropriations bill, would contain for my home State of South Dakota. Over $100 million would be directed toward producers impacted by devastating conditions, including comprehensive livestock and crop assistance measures.

The agriculture appropriations bill, however, has yet to see the light of day for debate on floor of the U.S. Senate. It is my hope that the majority leadership would allow this bill to be considered with due process.

My colleagues and I also passed agriculture disaster assistance as part of the supplemental spending measure that funded Katrina relief efforts and the war in Iraq. Because of a Presidential veto threat, however, the vast majority of meaningful agriculture disaster assistance was stripped out. The White House said that it would reject money for our troops in Iraq and victims devastated by Hurricane Katrina if that spending package contained a nickel of agriculture disaster relief for our Nation's farm and ranch producers.

Secretary Johanns adopted a ``wait and see'' approach to aiding our rural communities. The Secretary said this summer that he wanted to see how the harvest looked after the combines ran before considering further agriculture disaster aid for this production year. As the worst drought since the Dust Bowl, however, combines haven't run at all in parts of South Dakota. Our Nation's food security demands immediate assistance, not stop-gap measures and delay tactics.

Agriculture disaster is like any other disaster, and producers deserve meaningful relief. The administration continues to dig in their heels on drought assistance for our Nation's producers. Yet, this White House places a priority on rebuilding Iraqi agriculture while crying poor and lack of revenue at home.

The truth is that the administration has the authority to provide more comprehensive drought assistance at the stroke of a pen, if it wants, just as it did in 2002.

I urged President Bush to establish a program that would target those who suffer from actual losses, avoiding the type of waste and abuse that was disclosed with the implementation of the 2002 program. I expressed my interest in working with the Department of Agriculture to develop an effective and timely plan before more producers sold the family farm and were forced out of business. It has become painfully clear that real drought relief is not on this administration's current agenda.

The administration's lack of action on drought assistance underscores a need to pass this drought amendment today. This comprehensive agriculture disaster assistance measure covers 2005 and 2006 losses with a livestock compensation program and resources for crop production losses, and funds are included for impacted sheep producers. Small business assistance grants will also offer critical help. This amendment qualifies agriculture disaster money as an emergency, deserving immediate attention--attention that has so far been denied.

Producers are faced with critical financial decisions, and for many relief was needed frankly, months ago. Because of this drought and the delay in assistance, many producers won't be able to rebuild their herds.

A meaningful agriculture disaster relief package already passed the Senate--it was only because of this administration's veto threat that it was stripped out in conference by leadership.

Today I am pleased to join with my colleagues in offering comprehensive agriculture disaster assistance for 2005 and 2006. I thank Senator Conrad for offering this important legislation. An agriculture disaster is a natural disaster, like a tornado or a hurricane, and providing relief for our Nation's producers is simply fair and simply just.

Mr. President, I yield the floor.

Mr. President, in July the Senate Appropriations Committee approved the fiscal year 2007 Military Construction and Veterans Affairs appropriations bill. As a member of the committee, I supported this measure, and it is now being considered by the full Senate.

The bill provides a total of $94.3 billion in spending, including funding to make a number of critical upgrades to our military infrastructure. As a member of the appropriations subcommittee that has oversight on military construction, I was able to use my position to ensure that $23.4 million was included for three military construction projects in South Dakota.

Investing in our military infrastructure ensures that our military personnel have the tools they need to perform their mission. This bill provides $7.5 million to construct a new base civil engineer maintenance complex for the South Dakota Air National Guard at Joe Foss Field. This funding is necessary because the current complex is undersized and inadequate. The new facility will help the 114th Fighter Wing maintain a combat-ready force of civil engineers.

In addition to this infrastructure upgrade, Ellsworth Air Force Base will receive $3 million to install an urgently needed base water well. Likewise, a new Armed Forces Reserve Center will be constructed in Sioux Falls. Currently Army Reserve and Navy Reserve operations are housed in leased facilities that are over 40 years old. The new center will consolidate all operations into a new complex.

The bill also includes nearly $78 billion for the Department of Veterans Affairs, which is $6.45 billion above last year's funding level. This amount includes $28.7 billion for medical services--an increase of $3 billion from last year.

Most importantly, the Senate Appropriations Committee rejected President Bush's budget proposal to implement a $250 annual enrollment fee and increased pharmacy copayments for category 7 and 8 veterans. These fees are designed to generate revenue in order to help offset VA expenditures. In reality, they may force veterans to seek health care elsewhere because they cannot afford either the annual enrollment fees or the increased copayment costs.

Rather than relying on budget proposals aimed at driving veterans out of the VA in order to save money, I am pleased that the Senate opposed President Bush's proposal. I firmly believe that we should provide adequate funding to ensure all those who have defended our country receive the health care they have earned and deserve.

Mr. President, I continue to have deep concerns about the spending priorities of the Bush administration, but I do believe this bill will help provide our service members with top-notch military facilities. And while we can always do more for our veterans, this bill is a step in the right direction toward honoring our commitment to all those who served.

Reserving the right to object, I also wish to speak to the amendment that is about to be called up by the Senator from North Dakota. In order to maintain continuity, I would hope that I could speak after the Senator from Hawaii, if that is going to be the speaking order. If we are going to go to the Senator from Maine as an intermediary event, that is fine, too. If we are going to continue on this amendment, I would like to participate.

Mr. President, it is my understanding that I have 10 minutes under the order.

Mr. President, there are some things so ironic around here that you just have to smile. We are just coming off this election--and I congratulate my colleagues on the other side for their success with a significant and dramatic win. But if we listen to the rhetoric from them, and certainly from the pundits who analyzed the election, it was obviously about the war in Iraq, but it was also about fiscal discipline.

I don't know how many times I have read from national pundits, from the Washington Post and the New York Times, how the Democratic Party is now the party of fiscal discipline. Yet the first amendment brought to the floor of this Senate--the first amendment--increases the national debt by $4.9 billion. It exceeds the budget by $4.9 billion and claims it is an emergency, on an issue which has already been addressed by this Senate, I think, two, maybe three times, and rejected.

Well, maybe the folks out there who voted and thought they were voting for fiscal discipline when they voted to bring in the other party should take a look at this amendment and ask: Where did this come from? Is this a bill of goods I just got sold?

The first amendment brought up by the other side of the aisle after they win this significant, important, dramatic victory is to ask for $4.9 billion above the budget, throw it on the debt, increase spending. It is, as I said, ironic. It makes you wonder. I wonder where we are headed under this new regime. There is something called a regular appropriations process. In fact, it is very likely that we will get to an agriculture bill, an appropriations bill before we adjourn this session, euphemistically referred to as a lameduck session. When that bill comes up, if it is the belief, contention, and argument of those in the farm communities who have been affected by what they feel is a bad crop-year--if they believe they need additional funds, that bill will have the opportunity to shift funds around, move funds to those accounts that are needed, and which need additional funding, within the context of the budget, within the limitations of the budget. That is called regular order. But this is not regular order. This is a daytime robbery of the Treasury, a heist, in open daylight, and I give them credit for that.

There is nothing secretive about this. This is just saying we have the votes, so we are going to come to the floor and spend $4.9 billion and add it to the Federal debt and call it an emergency. It is going to stuff the budget. It is not good policy. It is not good fiscal policy. It clearly, in my humble opinion--I may have misread the election. I wasn't up for reelection, but I have certainly read a lot about it, and I participated on the stump enough.

I think it sells the people of this country who voted in the election a bill of goods they didn't think they were buying--in fact, just the opposite. I understand there are some folks on my side of the aisle who also feel compelled to vote for this amendment. I regret that, too, obviously. I hope they will reconsider. In any event, it is an amendment that violates the budget. It is, therefore, subject to a 60- vote point of order. We have 60-vote points of order here in order to try to maintain some semblance of fiscal discipline. This will be our first exercise in trying to maintain that semblance of fiscal discipline in what you might call the new congressional year. It will be a good test for us as a Senate for my colleagues on the other side who are about to become the majority party, and for us on this side, who will become the honorable minority. It will be a good test for us to see if we have the courage to actually initiate fiscal discipline in this new Congress. The opportunity is there. All we need is 41 votes.

Mr. President, 59 people can vote for their constituencies, vote to raise spending, raise the debt, vote to increase spending outside the budget. It will be a good test to see whether there are 41 people here who took the message away from the election that the pundits have told us is the message, that the national Democratic Party told us is the message, and that some of our own folks on our side told us is the message, which is that they expect the Congress to start living within its budgets. It will be a good test of whether at least the working minority heard that message.

At this point, I will make a point of order.

Mr. President, pursuant to the fiscal year 2006 budget resolution, I raise a point of order against the emergency designation in the pending amendment.

Mr. President, I must respond briefly to the Senator from North Dakota, whom I also greatly admire and with whom I have enjoyed working. He has always been a responsible and effective Member of this Senate, to say the least.

Let me make the point; he said there is no budget. There is no grand budget, that is true, but there is a budget. That is why he had to waive the Budget Act in order to get to this point. It is a function of the fact that we put in place, as those who follow the arcane nature of this institution know, a set of 302 allocations which are guiding how much money can be spent in the Senate, and that is essentially the budget. It is a pretty aggressive mechanism to put in place. Innumerable budget points of order have been brought under that, some sustained, some not sustained.

As to this amendment, this amendment did fail. It failed on an issue of germaneness. So there is a history here. But more importantly, the essence of the problem of this amendment is it busts the budget. It adds $4.9 billion to the debt. And I would argue that maybe the Senator from North Dakota doesn't feel he is in the new structure, but I believe most people think, in this post-election environment, where the election was so dramatic, that Congress shouldn't be functioning under the old rules of just breaking the budget; we should be living under the discipline, and we are not. That is my point.

If the American people's intent--and I think it was--was to send a message to us as the keepers of their pocketbooks, we are, in my opinion, not living up to that request when the first amendment brought to the floor of the Senate after this election is an amendment to increase spending by $4.9 billion above the budget and add that money to the debt. It is not good policy.

Mr. President, parliamentary inquiry: It has come to my attention that this language is not only increasing the appropriations, it may also have authorizing language in it. Is this amendment subject to rule XVI?

I wish to speak to the other side. I reserve the remainder of my time.